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July 14, 1953



Samuel Dash, Asst. Dist. Atty., Michael von Moschzisker, First Asst. Dist. Atty., and Richardson Dilworth, Dist. Atty., Philadelphia, for appellant.

Jacob Kossman, Philadelphia, for appellee.

Before Rhodes, P. J., and Reno, Ross and Wright, JJ.

Author: Reno

[ 173 Pa. Super. Page 332]

RENO, Judge.

A county detective swore out an information before Magistrate Myers charging Poley, appellee, with setting up and maintaining an illegal lottery and conspiracy to set up and maintain the same. The warrant issued thereon was not served upon Poley and he was not actually or manually arrested. According to the statement of his counsel, Poley appeared voluntarily*fn1 before the magistrate 'at Magistrate's Court No. 3, 1159

[ 173 Pa. Super. Page 333]

South Twelfth Street',*fn2 where, after a hearing, he was held for trial in the quarter sessions court under $1,000 bail, which he entered. The four indictments subsequently found against him were quashed on the ground that the magistrate was without jurisdiction in that the preliminary hearing was held in his own court and not in a divisional police court. The Commonwealth appealed.

The Magistrates' Court Act of June 15, 1937, P.L. 1743, § 11, as amended, 42 P.S. § 1111, provides for the establishment of divisional police courts presided over by magistrates, rotatively assigned by the chief magistrate, 'in which, in addition to the hearings regularly held therein, shall be held exclusively (except as provided in Section 10 hereof*fn3) the hearings of all persons arrested on sight or on a police warrant for the following indictable offenses, that is to say: For treason, * * * keeping, setting up and maintaining lotteries, * * * pool selling and book making, * * * and also all conspiracies, * * * to commit any of the foregoing offenses, * * *.' (Emphasis added.)

Poley was not arrested on the warrant; he appeared voluntarily; and the Commonwealth advances the potent argument that he is not within the literal meaning of the explicit provision of the Act which requires that only the cases of 'persons arrested on sight or on a police warrant' be heard in the divisional police courts. Although this contention could justify a reversal, we prefer to rest the decision upon the broader and more vital issue of the jurisdiction of the magistrate,

[ 173 Pa. Super. Page 334]

    which the court below decided adversely to the contention of the Commonwealth.

Clearly, the magistrate was armed with complete jurisdiction. He had jurisdiction of the person, since he had issued a warrant upon an information and Poley had appeared voluntarily. He had jurisdiction of the subject matter, since the information charged a crime and as a justice of the peace ex officio (Act of May 10, 1927, P.L. 866, § 18, 42 P.S. § 1058*fn4) he was authorized to inquire into the facts to determine the existence of a prima facie case, require and accept bail or commit the accused. 1 Sadler, Criminal Procedure, (2nd Ed.) § 36. He was acting within his territorial jurisdiction, which extends throughout the City and County of Philadelphia. Constitution, Art. V. § 11, P.S.; Act of 1927, § 18, supra. And he was sitting in the place appointed by law for the performance of his judicial duties.*fn5

The 1937 Magistrates' Act did not purport to oust or alter the jurisdiction of the magistrates. To the contrary, it recognized and preserved their jurisdiction. The title of the Act, as amended by the Act of May 9, 1949, P.L. 1028, relates solely to the 'duties' and 'practices' of the magistrates: ' Regulating the practice in and defining magistrates' courts'. The Act is exclusively a procedural statute. It was thoroughly examined in Rutenberg v. City of Philadelphia, 329 Pa. 26, 196

[ 173 Pa. Super. Page 335]

A. 73, and the Supreme Court sustained the sections relating to the criminal side of the magistrates' courts, p. 41, as 'a proper exercise of legislative power to prescribe criminal procedure and administrative reforms in these courts.' (Emphasis added.) More devastating of the contention that the Act ousted Myers' jurisdiction is the Supreme Court's additional emphatic pronouncement, p. 33, 'Furthermore, no magistrate is deprived of any jurisdiction by their [divisional police courts] creation, because each magistrate in rotation sits in these divisional stations, and no magistrate who has issued a warrant is deprived of the right to have the offender brought before him for hearing.' (Emphasis added.) The Act regulates magisterial procedure only, and, whatever may be the effect of other sections, § 11 confers no fundamental rights upon defendants.

Unless the statement of the Supreme Court, last quoted above, means that magistrates, notwithstanding the establishment of the divisional police courts, may still hear cases for which they have issued warrants in their own courts, Magistrate Myers should have followed the procedure prescribed by the Act, and referred Poley's case to the proper divisional police court. Doubtless, upon timely objection or motion, he would have referred it, or discharged it. His error related wholly to a matter of procedure, and Poley participated in it. By voluntarily appearing and submitting to the hearing, he did not confer jurisdiction by consent; but by failing to object and by entering bail he did waive all procedural errors, if any were committed.

Furthermore, considering the Act as a procedural statute, defects or irregularities in the preliminary or antecedent proceedings will not be examined on a motion to quash. Com. v. Mallini, 214 Pa. 50, 63 A. 414; Com. v. Brennan, 193 Pa. 567, 44 A. 498; Com. v. Valsalka, 181 Pa. 17, 37 A. 405; Com. v. Manfredi, 162 Pa. 144,

[ 173 Pa. Super. Page 33629]

A. 404; Com. v. Wideman, 150 Pa. Super. 524, 28 A.2d 801; Com. v. Murawski, 101 Pa. Super. 430; Com. v. Magid & Dickstein, 91 Pa. Super. 513; Com. v. Williams, 54 Pa. Super. 545. 'It is well settled that where, as in the present case, a defendant has had a preliminary hearing, has given bail for court, and has been regularly indicted by a grand jury upon examination of witnesses, it is then too late to question the sufficiency or regularity of proceedings prior to the indictment. In case defendant feels himself to be aggrieved in such circumstances, his proper remedy is by proceedings to be discharged from custody upon the ground of illegal commitment, and not by motion to quash the indictment'. Com. v. Murawski, supra, 101 Pa. Super. at page 431. (Emphasis added.) 'The court should not sustain a motion to quash an indictment except in a clear case where it is convinced that harm has been done to the defendant by improper conduct that interfered with his substantial rights.' Com. v. Brownmiller, 141 Pa. Super. 107, 116, 14 A.2d 907, 911.

The order quashing the indictments is reversed; the indictments are reinstated; and the record is remitted to the court below with a procedendo.


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